The “Common Law Property” Myth in the Libertarian Critique of IP Rights (Part 1)

In libertarian critiques of intellectual property (IP) rights, such as copyrights and patents, it’s common to the hear the claim that “traditional property rights in land” is based in inductive, ground-up “common law court decisions,” but that IP rights are top-down, artificial statutory entitlements. Thus, the argument goes, property rights in land are rooted solely in court decisions arising from facts of the world, but IP rights are state-created monopolies that mostly serve the interests of rent-seeking special interests exploiting access to unbounded legislatures.

For those who may think that this is an improper characterization of this widespread claim about IP rights need only have attended the “Copyright Unbalanced” event at the Cato Institute on December 6, in which copyright was attacked in precisely these terms.

This oft-made contrast by libertarians between so-called “common law property in land” versus “statutory IP” is a myth that has no basis in the reality of how common law property rights in land evolved in England and then in the United States of America.

This is important, because history is very informative and provides importance evidence for inducing principles in both ethical and political theory, but when myth is passed off as history, these ersatz “historical” claims undermine clear thinking and perpetuate falsehoods. This is especially important when these mythical claims are advanced in the policy debates, as this misleads commentators and decision-makers about the true nature of our property rights and the true foundations of our political and legal institutions.

With respect to IP rights as property rights, I and others have been explaining in our academic law journal articles for years that these “historical” claims are a myth, but we have focused only on the IP side of the myth. For instance, I have shown with my substantial research into primary historical documents how the history of patents evolved under the guiding hand of natural rights philosophy, both in America and in England. I have also explained, contrary to claims by Tom Bell, Jerry Brito and other libertarians, how John Locke expressly endorsed copyright in his writings and positively referred to “inventions and arts” in his natural rights justification of property in the Second Treatise (you can read my article here). Professor Justin Hughes has uncovered similar historical evidence on the side of copyright law (you can read his article here).

But I have never addressed why the libertarian argument advanced by Tom Bell, Jerry Brito and others is entirely a myth even in its claims about the historical legal development of common-law property rights in land (at least not in public, as I have done this in private email exchanges.)

First and foremost, I know it’s a myth because I teach the Anglo-American evolution of property rights in land every year in my Property class (what we call the 1L year in law school). But I’m not unusual, as this information is in all of the Property textbooks used by property professors in every law school. As all law students learn each year in their Property classes, the foundation of the “fee simple” in land is not court decisions, but rather a statute passed by Parliament: the Statute Quai Emptores of 1290. This statute is explicitly identified in all Property textbooks as the foundation of the entire Anglo-American property system in land; as the most famous and widely used property textbook states, “By the end of the thirteenth century, Quia Emptores settled that the fee was freely alieneable,” and thus it explains that it was this statute that first established that “the [originally feudal] relationship between tenant and lord was basically an economic one.”

What followed in the ensuing decades and centuries were more and more statutes enacted by Parliament, further defining the scope and boundaries of many of the rights that constitute property rights in land. Here are just a few of the prominent statutes (there are far too many to effectively list all of them in a blog posting):

Statute of Gloucester (1278) (creating rights against life estate owners by the owner of the follow-on future interest or broader estate)

Statute of Uses (1535) (creating many future interests in land)

Statute of Wills (1540) (securing and creating conveyance rights in land in wills)

Of course, the common law courts extended and applied these statutes, and developed in classic common-law fashion more legal doctrines that defined and further secured property rights in land, but it is simply an historical myth that common law property rights in land were entirely fashioned by courts, contrary to the legislatively created IP rights in patents and copyrights. (In fact, the English common law system was heavily influenced by the Roman Law and the natural law philosophers working within the Roman Law, and of course all property rights in Roman Law were based in statutes as well.)

This same pattern in the creation and enforcement of property rights in land continued in the early American Republic. For example, early American state legislatures enacted statutes defining and securing the rights of adverse possessors, creating title recordation requirements, defining and securing property conveyance rights, defining and securing wills and the creation of future interests in land, as well as adopting statutes eliminating English common law property rights, such as the fee tail, among many others. This pattern has continued today; for instance, most states have adopted statutes eliminating the famous property doctrine of the Rule Against Perpetuities (creating much happiness among property lawyers and law students alike), replacing it with a doctrine that goes by the acronym of USRAP (Uniform Statutory Rule Against Perpetuities). Of course, these statutes have all been interpreted, applied and extended in common law fashion by American state courts in the same way that the English common law courts did so with Parliament’s statutes.

In short, the libertarians advancing the false distinction between “common law property in land” versus “statutory IP rights” are misstating what it means when we all say that the Anglo-American property system is rooted in the “common law.” In the technical sense of this term, the Anglo-American property system is a common law system insofar as courts have developed the law and the rationale for their decisions without having to validate these decisions by reference to a particular statute. This is in contrast to the “civil law” system in Europe, in which all judicial decisions must ultimately refer back to a statute as the validating source of the judicial decision itself. But to say that the Anglo-American property system is a “common law system” does not mean, of course, that there weren’t statutes that were interpreted, applied and extended by courts, and as a straightforward historical fact there were many statutes enacted by Parliament that defined the foundational rights in Anglo-American property law. The fact that statutes weren’t mandated by the Anglo-American legal system as an institutional requirement for valid court decisions does not mean that statutes did not play a substantial historical role in the creation and enforcement of property rights in land.

In sum, it’s a complete myth for libertarians to argue that IP rights are “different” from property rights in land because property rights in land developed in “common law” as opposed to “statutory” IP rights. But it’s even worse than a myth, because this is not a false claim made in the ivory tower in a dispute between academic historians. Rather, this false historical claim is asserted in the policy debates today to advance an anti-IP agenda. Thus, it’s important to call out this misleading historical myth, as it’s being used to leverage misleading attacks on copyright and patents. I don’t mind engaging in bracing public policy debates about whether IP rights are right or wrong — I love these debates, especially with people who share my own commitment to free market principles — but let’s at least get the basic historical facts correct in these debates. These are facts that are not in dispute and are well known, including even to the libertarians who survived their 1L Property classes in law school and are now speaking on these issues in the academy and in think tanks.

(In my next blog posting on this topic, I’ll address how there was the exact same interplay between statutes and common law decision-making in the courts in the development of patent and copyright law.)

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10 responses to The “Common Law Property” Myth in the Libertarian Critique of IP Rights (Part 1)

I think you would be more precise if you stuck with the phrase “some libertarians” rather than “libertarians”. Not all libertarians interested in IP issues make this argument, just as not all libertarians regard common law development as categorically better than lawmaking by statute. And of course not all libertarians hew to an “anti-IP agenda,” assuming we can agree on what is meant by that.

Thanks, Walter, for the comment, and you’re right. I tried to keep using the phrase “some libertarians,” as you’re certianly right that there’s no single libertarian viewpoint on IP rights. In fact, my professor, mentor and good friend, Richard Epstein, is a prominent example of a libertarian defender of IP rights, and I’ve learned much from his work on the subject (even though we have our disagreements as well). I hope I succeeded better in my Part Two posting that I did today in making sure that I was not painting with too broad of a brush.

Excellent points, Adam. I make some comments along the same lines in my Surprisingly Free Podcast with Jerry (airing Tuesday next week). But not to change the subject, I’m unclear as to why the historical origins even _matter_ to the current debate anyway. In short, it’s a distinction (if it is even that) without a difference given that, whatever the source, protection of property rights tends to require enforcement by the state (See, e.g., Hobbes), and, among other things, real property, like copyright, is protected by criminal statutes. And the same goes for definition — whatever the alleged origins, there are now probably thousands of statutes that serve to define real property rights (think public utility easements (conferred by local statutes), air rights (given to the FAA under the Federal Aviation Act), etc.). There may be some principled criticisms of these statutes with respect to real property, as well, but I fail to see how there is a meaningful difference with copyright. So copyright is granted by statute? Big deal. At least in the main it’s the state conferring, defining and enforcing a property right instead of micro-managing commercial relationships with command and control regulation (although there is some of that, too, of course — inevitably). Libertarians should be proud.

Hi Geoff – In some sense, you’re right that the history is irrelevant qua history in the contemporary policy debates, but it’s extremely important here for at least two reasons. First, history is being used improperly to bootstrap policy arguments, and thus the reason why anti-IP libertarians are making the historical claim is because this is a normatively robust claim for people well schooled in Hayek’s theories of the benefits of disaggregated, bottom-up decision-making in legal systems. So, it’s important to make this point, even if it’s only polemical, to show that a normative theory is being used improperly in the guise of a “historical” argument against IP. Second, I do think the history is important, not qua history, but because the legal institutions and doctrines we have today were first created many decades if not centuries ago. Thus, to understand the normative principles built into the conceptual structure of the doctrine itself, such as the rights of alienation secured to IP owners, it’s important to understand the historical context in which these doctrines were created and developed. This latter point, of course, is the most important and only reason to care about this history, and thus it’s no big surprise that this is a major theme in my work on the intellectual history of IP rights.

My dad emailed me this response. Since it is pretty much what I would say, I’m posting it:

Isn’t the original post a bit too law-oriented? It seems to me that both Mossoff and the libertarian critics of IP rights are allowing legal history to be determinative of what is basically an economic issue. Also I suspect that deep within libertarian bowels is an objection to the use of government to extend any rights that don’t seem to materialize in the unfettered economy, which they may in this case confuse with common law. Mossoff on the other hand fails to note, or at least give sufficient significance to, the fact that part of the English common law, as adopted by colonies and states, was indeed Parliamentary law; all common law was not judicial in origin. I have always thought that the starting point for this discussion should be Armen Alchian’s classic on the Economics of Property Rights. Armen would certainly make no distinction between a property right created (or recognized?) by common law or one created by legislation. Adding a little Demsetz to the mix would tell us that definition and enforceability of the right also help. Neither says anything about whether the right is initiated by courts or legislatures. It seems to me that the IP area is one in which the powers of government (but I wouldn’t care if this were accomplished by judicial holdings or legislation) can actually be used for good by defining and enforcing property rights (and, therefore, socially beneficial exchange) that could not be protected in the absence of the government’s creation, recognition and enforcement of the right. Obviously there are tradeoffs, but there is nothing peculiar about that kind of problem, and, if the costs of giving property rights in IP prove higher than the benefits, don’t do it. That is where the battle ought to be fought.

Obviously, I agree completely and, as my podcast with Jerry will demonstrate, absolutely take Alchian as the starting point (in this and just about everything else, so it’s not so surprising). I do appreciate the history both here and in your other work, and most definitely appreciate the correction of those who use history incorrectly. To bolster my dad’s important point about the origins of common law, I would also point to this from Hale’s History of the Common Law of England (1713):

And doubtless, many of those Things that now obtain as Common Law, had their Original by Parliamentary Acts or Constitutions, made in Writing by the King, Lords and Commons; though those Acts are now either not extant, or if extant, were made before Time of Memory; and the Evidence of the Truth hereof will easily appear, for that in many of those old Acts of Parliament that were made before Time of Memory, and are yet extant, we may find many of those Laws enacted which now obtain merely as Common Law, or the General Custom of the Realm: And were the rest of those Laws extant, probably the Footsteps of the Original Institution of many more Laws that now obtain meerly as Common Law, or Customary Laws, by immemorial Usage, would appear to have been at first Statute Laws, or Acts of Parliament.